The Supreme Court Could Use an Expert on National Security or International Law

One doesn’t hear much about the Supreme Court as a team these days, but in fact for most of the life of the Court this has been one of its principal modes of operating. Although Oliver Wendell Holmes, Jr. has been immortalized by the pungent prose of his constitutional dissents, he was brought on the Court as an expert in the common law at a time when there was a substantial body of federal common law and when the US Supreme Court was a great commercial judicial tribunal. Harlan Fiske Stone — like Justice Scalia many decades later — was often consulted by his colleagues for his expertise in antitrust law. Although Louis Brandeis is perhaps most famous for an essay advocating the protection of privacy, on the Court, his colleagues often look to him for guidance regarding the developing law of the administrative agencies. There are many other examples, which should not surprise us because the Court is a multimember panel whose judges have similar backgrounds but very different areas of expertise. This team play not only raises the game above what harassed clerks can quickly learn about a specialized area, it also enhances camaraderie, civility, and coherence on the Court.

With this in mind, I would like to propose two names for the hopper now churning with potential nominees for the vacancy caused by the death of Justice Scalia. Each of these persons would bring expertise in areas of the law that are bound to become more central to the work of the Supreme Court in the ensuing years.

The “strategic turn” in constitutional law has brought squadrons of mild-mannered law professors to the task of integrating the subjects of national security — defense policy, intelligence collection and analysis, diplomacy, and executive authority with respect to armed conflict — into constitutional and international law. When I was a law student, the importance of national security as a fundamental driver of the evolution constitutional law was quite generally neglected. Few in the late 1970s would have suggested that the Constitution was principally the result of a widespread concern among the Framers for the security of the American state. Nor did many law teachers treat international law as mainly shaped by its interaction with war and conflict.

Avril Haines is currently the Deputy National Security Advisor. Prior to taking up her current post, she was the Deputy Director of the CIA — the first woman to hold that position. She had previously served as the Counsel to the NSC and before that had been an attorney for the State Department, rising to be head of Treaty Affairs. She was nominated to be the Legal Advisor for the Department before the president decided to send her to CIA. There are few attorneys, in or out of government, who command the respect universally accorded Avril Haines.

Sarah Cleveland has recently returned to resume her chair at the Columbia Law School where she also directs the Institute on Human Rights. Previously, she was the Counselor on International Law at the State Department. She was nominated by the United States and elected in 2014 to serve a four-year term as an independent expert on the United Nations Human Rights Committee and is the US member on the Venice Commission of the Council of Europe. A Rhodes Scholar and former clerk for the US Supreme Court, she is now Co-Reporter for the American Law Institute on the Fourth Restatement of the Law of Foreign Relations of the United States, which is a very big deal in my world.

Avril Haines and Sarah Cleveland are among the most outstanding lawyers working in the fields of national security and international law, respectively, in the United States. Either would bring to the Court an impressive depth of experience and reflection on subjects of growing importance on the Supreme Court’s docket.

Moreover, it should be pointed out that while my law classes at Columbia and the University of Texas are 50 percent female, the Supreme Court has not yet approached this ratio. Another woman as a Supreme Court justice would be welcomed.

As to the politics, I’ll defer to others. But I cannot believe the American people would be so willing to abandon the constitutional responsibilities assigned to our government to fill vacancies on the US Supreme Court. Should the Senate, after weighing the nominee of the president, find her wanting, I do not doubt the country would acquiesce in the decision. But should partisan leadership establish a precedent that in the final year of a president’s term — if the president happens to be of the opposite party to the majority leader of the Senate — the president should be deprived of his constitutional role to fill vacancies on the Supreme Court, I do not think our public would be so indulgent. They would see such a dereliction of the Senate’s constitutional duty for what it is: a naked effort to pervert the consensual institutions of our beloved Constitution for party advantage. This would add to two deplorable phenomena of our era: the politicization of the courts and the polarization of Congress, both of which have contributed to a loss of confidence in our public institutions.